New Copyright Law Threatening To Put Artists And Publishers Behind Bars Is An Act Of Censorship

In light of recent decisions in the courts regarding the appropriation and use of images in works of art, that saw the Belgian artist Luc Tuymans found guilty of copyright infringement – after losing a legal battle in his home country over the alleged plagiarism concerning a portrait the artist created in 2011 – and the estate of the well known French photographer Jean-François Bauret suing the American artist Jeff Koons for copying one of his best known images, for the 1988 sculpture titled Naked. There appears to be a disturbing change in attitudes regarding the use of found and appropriated images, it appears that the knives are out for this particular artistic tradition.

Now in another twist that has art publishers equally disturbed is the new regulation making copyright breach in Britain a criminal, rather than a civil, offence. Are we now going to send art editors, and publishers to jail?

Europe seems to be leading the way in what amounts to an attack on the viability of publishers and art-related businesses to work with artists and estates on the rights of the reproduction of images, as well as threatening artists by criminalising appropriation when it is considered a copyright violation.

This new British copyright law goes into effect in 2020, and effectively makes it more expensive to reproduce images in publications, and even if many publishers wished to comply with this new law they may not have the funds to do so, and argue that the provisions are unreasonable due to the often limited economics of the art publishing business.

The changes to the law are outlined in a report from the British Intellectual Property Office with the title “Transitioning provisions for the repeal of Section 52 of the Copyright, Designs, and Patents Act 1988” and subtitled “Government response to the consultation and announcement of transitional provisions.” Although the title might lead one to a coma, the details of the report are chilling to any publisher, or appropriation artist.

The changes stem from the repeal of Section 52, which now restricts design rights on mass-produced items to 25 years after manufacture. “this allows designers to exploit their ideas commercially while protecting the consumer by limiting the monopoly to a quarter of a century, after which time competing products became legal” – according to a report in the Antiques Trade Gazette.

Even more disturbing is the fact that the changes are retroactive, which means that in some cases where image rights have expired they will be revived. That means that publishers will have to check every image in every book published, as well as images on promotional items like mugs and cards in museum and gallery shops, or the copyright police may come knocking.

Museums and publishers will need to apply for additional licensing incurring much higher costs to business. Failure to do so will constitute a breach of copyright and will be considered a criminal offence. A fact that is simply unreasonable, are we also to undo some of the great appropriation art of the late 20th Century?

There is a longstanding tradition of appropriation in art, where will the fine line between being inspired by another artist’s work, and what will be illegal appropriation be drawn exactly? What happens when an artist or designer borrows work or ideas from another artist or designer to make a new work? If found guilty of violating copyright, these artists have committed a criminal offence and could end up behind bars.

Gazette editor Ivan Macquisten is worried about this very question: “at first glance, the repeal of section 52 seems a boon for designers . . . However, as always the devil is in the details and some of the leading intellectual property specialists in the country have argued that it will have a chilling effect on new design, because young designers must ensure that they do not fall foul of the law when inspired by earlier designers.”

The same could be said of artists. Richard Prince, for example, has built a career from the intellectual dialogue concerning the image in culture and society. Prince’s very work concerns the nature of reproduction and the duplication of the image. The artist even created the process of ‘Re-photography’ as a method of appropriating the image, and creating a work about that very act, re-contextualising it. One of the may facets of language in art is the Duchampian nature of authorship, and the appropriation of the found object and its re-purpose. Do we now throw away these concepts from art history?

Do we dispose of Prince’s ‘Re-photography’ from the history of art? Do we redact this history from our publications in fear of future artists being inspired by the idea of appropriation as a way of reflecting contemporary mass media, and the viral nature of the image in the 21st century – and landing them in jail? Have we seen the end of ‘Re-photography’, and the beginning of the ‘re-write’ of history? For in fact this change in copyright law could be seen, not only as a cynical attempt at producing a new revenue stream, but as an act of censorship, the prevention of a longstanding and culturally valuable practice in art.

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